NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 13 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50345 Plaintiff-Appellee, D.C. No. 2:18-cr-00653-GW-1 v. MEMORANDUM* ERNESTO CEJA MEDINA, AKA Ernesto Ceja, Defendant-Appellant. Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding Argued and Submitted January 12, 2023 Pasadena, California Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Ernesto Ceja Medina was indicted on one count of illegal reentry after removal in violation of 8 U.S.C. § 1326. He appeals the district court’s denial of his motion to dismiss the indictment, claiming that his underlying order of removal was invalid because the immigration judge (“IJ”) denied him due process at his removal hearing. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We review the district court’s denial of the motion to dismiss de novo. United States v. Ramos, 623 F.3d 672, 679 (9th Cir. 2010). A defendant charged with unlawful reentry may bring “a collateral attack challenging the validity of his underlying deportation order because it serves as a predicate element of his conviction.” United States v. Melendez-Castro, 671 F.3d 950, 953 (9th Cir. 2012). The defendant must demonstrate, among other things, that “the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d)(3).1 The entry of a removal order is “fundamentally unfair” if the defendant suffers prejudice resulting from a due process violation. United States v. Gonzalez-Flores, 804 F.3d 920, 927–28 (9th Cir. 2015). To establish prejudice, a defendant “must make a ‘plausible showing’ that an IJ . . . would exercise discretion in the” defendant’s favor, but for the 1 The government contends, and the district court held, that even if Medina could show fundamental unfairness and a due process violation, he would still not be entitled to relief because he failed to show that he exhausted available administrative remedies, § 1326(d)(1), and that he was deprived of judicial review, § 1326(d)(2). Because we reject Medina’s due process claim, we do not reach either of those other issues. 2 alleged due process violation. Id. at 927 (citing United States v. Rojas-Pedroza, 716 F.3d 1253, 1263–64 (9th Cir. 2013)). Medina contends that he suffered prejudice because in the absence of the alleged due process violations, he could have received voluntary departure relief. We “employ a two-step process” to evaluate this argument. Id. First, “we consider the positive and negative factors an IJ would consider relevant to an exercise of discretion.” Id. We can also consider positive equities that were not in the record before the IJ. See id. at 928. Positive equities include “long residence, close family ties to the United States, and humanitarian needs,” while negative equities include “the existence, seriousness, and recency of any criminal record” and “any other evidence of bad character or …
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